The City of London Law Society

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1 The City f Lndn Law Sciety 4 Cllege Hill Lndn EC4R 2RB Tel: Fax: Respnse t the ACAS Cnsultatin n a Draft Cde f Practice n Discipline and Grievance The City f Lndn Law Sciety (CLLS) represents ver 13,000 City lawyers, thrugh individual and crprate membership including sme f the largest internatinal law firms in the wrld. These law firms advise a variety f clients frm multinatinal cmpanies and financial institutins t Gvernment departments, ften in relatin t cmplex, multijurisdictinal legal issues. The CLLS respnds t a variety f cnsultatins n issues f imprtance t its members thrugh its 17 specialist cmmittees. This respnse t the ACAS cnsultatin n a Draft Cde f Practice n discipline and grievance has been prepared by the CLLS Emplyment Law Cmmittee. The Cmmittee is made up f a number f slicitrs frm City f Lndn firms wh specialise in emplyment law matters. The Cmmittee s purpse is t represent the interests f thse members f the CLLS invlved in this area. Clause 3 f the Emplyment Bill It is appreciated that the Cnsultatin is nt abut Clause 3 f the Emplyment Bill. Hwever, any cnsideratin f the draft Cde has t be by reference t Clause 3 fr s lng as Clause 3 remains. It is ur view that Clause 3 is a retrgrade step. As the Gibbns Reprt has cnfirmed, the intrductin f the Statutry Dismissal/Disciplinary and Grievance Prcedures (the Statutry Prcedures ) has nt been a success. They have cnverted disciplinary and grievance prcedures int a legal battlefield where the aim f the parties is t tick the statutry bxes rather than reslve a prblem. Further, they have spawned satellite litigatin which is mre abut catching the ther party ut and inflicting a penalty n the ppnent, than justice. This serves neither the legitimate interests f claimants nr respndents. The reslutin t this prblem wuld be t revert t the 2004 situatin by repealing Sectins 29 t 33 f the Emplyment Act While the Gvernment prpses t d this, unfrtunately the Gvernment, by intrducing Clause 3 f the Emplyment Bill, repeats the flly f Sectins 29 t 33. This is because there is a real danger that the Statutry Prcedures will arise phenix-like in the guise f the ACAS Cde f Practice (the Cde ). By reasn f Clause 3 (if enacted) a failure t cmply with the Cde will permit Emplyment Tribunals t increase/decrease Tribunal awards by up t 25%. As a result we predict cmpliance with the Cde is in danger f becming the new battlegrund between claimants r respndents spurred n by the prspect f inflicting a penal award n the ther side. Lked at frm the perspective f respndents, the Cde will present a duble-jepardy. Fr example, nt nly will a failure t cmply with the Cde mst likely be treated as unfair dismissal, but als Tribunals will be able t adjust the cmpensatry award by up t 25%. As the claimant will have been cmpensated fr 1

2 financial lss thrugh the cmpensatry award fr unfair dismissal, the adjustment f up t 25% can nly be penal. Therefre, respndents will have incurred a duble penalty fr ne act f nn-cmpliance. This is nt even-handed because the same cannt happen t a claimant wh has nt cmplied with the Cde. The claimant may have an adjustment made t an award but nn-cmpliance cannt prevent, fr example, a finding f unfair dismissal against the emplyer. We recgnise that it is unrealistic t expect the Gvernment t recgnise the errr f Clause 3. Therefre, it becmes imperative that the Cde des nt make a bad situatin wrse. We believe the key t this is t ensure that the Cde is a mdel f clarity. It is right that emplyers shuld cmply with the Cde r face, fr example, a risk f unfair dismissal. It is equally right that emplyers shuld knw what they have t d. But, imprtantly, what they have t d t cmply with the Cde must recgnise the diversity f situatins that emplyers have t deal with. The Cde shuld nt be ver-prscriptive r fail t recgnise there is nt a ne size fits all fair apprach t discipline and grievance. Having a principles-based Cde risks uncertainty. Thus the principles must be clear and flexible. The success f the Cde will be judged by the amunt f satellite litigatin it generates. It shuld nt generate any. Yet anther prblem with Clause 3 is that Tribunals have t rule n whether a departure frm the Cde was an unreasnable failure. Is this a subjective r bjective test r a mixture f the tw? Is this ntin f reasnableness t be tested by case law related t the traditinal ACAS Cde and the Statutry Prcedures? This uncertainty is anther reasn fr flexibility in the Cde. The Cde itself shuld reflect nrms f reasnableness. Against this backgrund, we set ut sme general cmments and then cmment n a number f sectins f the Cde. Extracts frm the draft Cde appear in bld italics. The numbering is that used in the draft Cde. GENERAL COMMENTS ON THE CODE The Guidance 1. Our respnse des nt cnsider the ACAS draft guidance. Hwever, we think the Cde and the guidance need t make plain that the guidance des nt frm part f the Cde. Mrever, it shuld nt be used t interpret the Cde, therwise it in effect becmes part f the Cde. Put anther way, the Cde shuld be selfexplanatry and stand n its wn. Status f the Cde 2. Emplyment Tribunals are well able t determine the reasnableness f actins taken by emplyers and emplyees. They d nt need the Cde t assist them in this task. As we have nted abve, there is duble jepardy if the Cde is t determine, say, the fairness f a dismissal fr unfair dismissal purpses. The Cde is a creature f Clause 3 f the Emplyment Bill and therefre its status shuld be limited t that rle. Our view is that the Cde shuld state it is slely t be used t determine whether an adjustment shuld be made t an award (and nt whether an award shuld be made in the first place). In ther wrds, the Cde shuld nt fulfil the same functin as the ACAS Cde f 2004 which is designed t be used when testing the prcedural fairness f a dismissal - see sectin 207 f the Trade Unin and Labur Relatins (Cnslidatin) Act Interpretatin f the Cde 3. At present there is n reference t the Cde being principles based. This shuld be included and it shuld be made clear that emplyers have flexibility t apply the principles as apprpriate t the relevant circumstances. 2

3 PRELIMINARY COMMENTS ON THE CODE INTRODUCTION 1 This cde is designed t help emplyers, emplyees and their representatives deal with disciplinary and grievance situatins in the wrkplace. 1.1 N definitin is prvided f what cnstitutes a disciplinary r grievance situatin. The parties need t understand when the Cde is applicable. Des it cver a redundancy dismissal? An ill-health dismissal? Expiry f a fixed-term cntract? 1.2 Equally, the Cde des nt make clear what cnstitutes disciplinary actin subject t the Cde. Is it intended t g beynd the Statutry Prcedures by including all warnings? This wuld seem a backward step. It wuld als be beynd the current law f unfair dismissal. T have a right f appeal (see paragraph 25) fr an infrmal verbal warning is burdensme, especially fr small emplyers. Is cunselling guidance discipline? 2 Many ptential disciplinary r grievance issues can be reslved infrmally. A quiet wrd is ften all that is required t reslve a prblem. Hwever, where infrmality des nt wrk the matter may be pursued frmally. 2.1 Is this paragraph suggesting that infrmal matters are nt within the ambit f the Cde? Des this mean verbal warnings are excluded frm the Cde? Verbal warnings are excluded frm the Statutry Prcedures. Des the same apply t the Cde? 2.2 It seems t us that a further issue may als arise, which is at what stage des infrmal actin becme frmal? When shuld emplyers cmply with the Cde in rder t avid an uplift? Fr example, if an emplyee submits a written cmplaint can this be dealt with infrmally initially? Or shuld written cmplaints always be dealt with frmally in accrdance with the principles f the Cde? 3 Fairness and transparency are prmted by develping rules and prcedures fr handling disciplinary and grievance situatins. These shuld be set dwn in writing, be specific and clear and be agreed wherever applicable with trade unins r emplyee representatives. It is als imprtant t ensure that emplyees and managers understand hw they are t be used. 3.1 It is ver-prescriptive t require written rules. As a matter f custm and practice, emplyees will ften be aware f what is impermissible at the wrkplace withut having t have this set dwn in writing. Certainly having written rules is gd practice but shuld an award f unfair dismissal be increased by 25% because, fr example, an emplyer did nt have a written rule that punching the bss was a disciplinary matter? 3.2 In the secnd sentence it is stated that rules and prcedures are t be agreed wherever applicable with trade unins r emplyee representatives. It is unclear whether this means (a) that agreement is nt required where there are n trade unins r emplyee representatives, r (b) applicability depends upn ther factrs. We assume it is the frmer and this shuld be stated. 3.3 Why shuld an emplyer s failure t agree a set f rules/prcedure be nncmpliance with the Cde and therefre put an emplyer at risk f a 25% award adjustment? 3.4 Mre fundamentally, why shuld an emplyer be under an bligatin t agree. Cnsultatin is mre apprpriate. 3

4 3.5 It is unclear as t hw emplyers are t ensure that emplyees understand hw they are t be used. Des they refer t rules and/r prcedures? What is an emplyer required t d mre than prvide emplyees with self-explanatry rules and prcedures? We can see the advantage in training managers hw t perate prcedures when they are likely t take part in the prcess. But training emplyees seems t be verkill. 4 Where sme frm f frmal actin is needed, what actin is reasnable r justified will depend n all the circumstances f the particular case. The size and resurces f the emplyer shuld always be taken int accunt. In small rganisatins it may smetimes nt be practicable t take all f the steps set ut in this Cde. Hwever, the key elements f gd practice that emplyers and emplyees shuld wrk t are set ut in the paragraphs that fllw. 4.1 The reference t small rganisatins begs the questin f the test fr small. Is this defined by reference t number f emplyees, turnver, resurces r smething else? 4.2 The final sentence then cntradicts flexibility fr small rganisatins suggested by the third sentence, by saying the rest f the Cde is what emplyers and emplyees shuld d. This might be better expressed as fllws: Hwever, in small rganisatins it may smetimes nt be practicable t take all f the steps set ut in this Cde. The size and resurces f the emplyer shuld always be taken int accunt. 4.3 At varius pints in the Cde reference is made t gd practice (e.g. paragraphs 4, 7, 9 and 43). What is this intending t cnvey? The cncept is cnfusing because it suggests ther parts f the Cde are nt gd practice - surely nt - r it is nt mandatry t cmply with gd practice (i.e. failure t fllw will nt result in the penalty f a 25% award adjustment). The Cde shuld change the expressin, r make clear what is intended (including cnsequences f nn-cmpliance). Alternatively, gd practice shuld nly feature in the guidance. 5 Emplyers and emplyees shuld d all that they can t reslve disciplinary and grievance issues in the wrkplace. Recurse t an emplyment tribunal shuld nly be a last resrt. 5.1 The parties are required t d all that they can t reslve disciplinary and grievance issues. This ges beynd a reasnable endeavurs requirement and requires a high standard that is unrealistic. 5.2 While we appreciate the frewrd is nt part f the Cde, the similarity between the third paragraph f the frewrd and this paragraph 5 is striking. Thus, paragraph 5 will be interpreted as mandating third party reslutin (e.g. mediatin). While we wuld agree that alternative dispute reslutin is t be very much encuraged, we d nt think paragraph 5 is the crrect way t d this. The result will be that Emplyment Tribunals will be asked t rule n whether, fr example, failure t mediate was nn-cmpliance with the Cde. This is an issue as much fr emplyers as emplyees. It will spawn the satellite litigatin that the Cde was presumably designed t avid. 5.3 Paragraph 5 shuld be transferred t nn-statutry guidance. 6 Whenever a frmal prcess is being fllwed it is imprtant t deal with issues fairly. There are a number f elements t this. Issues shuld be dealt with prmptly. Meetings and decisins shuld nt be unduly delayed. 4

5 Emplyers shuld act cnsistently and ensure that like cases are treated alike. Apprpriate investigatins shuld be made, t establish the facts f the case. Any grievance r disciplinary meeting shuld, s far as pssible, be cnducted by a manager wh was nt invlved in the matter giving rise t the dispute. Where the emplyer is raising a perfrmance prblem the immediate manager wuld be invlved. An emplyee shuld be infrmed f the basis f the prblem and have an pprtunity t put their case in respnse befre any decisins are made. An emplyee has the right t be accmpanied at any disciplinary r grievance meeting. An emplyee shuld be allwed t appeal against any frmal decisin made. 6.1 Very few peple wuld disagree with the eight elements set ut. Hwever, the paragraph cntains n recgnitin f flexibility. Fr example, while it is right that, as a general matter, issues shuld be dealt with prmptly, there may be very gd reasns fr delay (whether n the part f the emplyer r the emplyee). The Cde shuld recgnise that it is undue delay that is unreasnable. Nt all delay is unreasnable. Undue delay shuld replace prmptly thrughut the Cde ( prmptly is used in paragraphs 8, 13, 25, 33 and 40 f the draft Cde). 6.2 Further, n hierarchy is set fr these elements (which is an issue if there is n flexibility) but yet if they are treated equally there is ptential fr cnflict. Fr example, issues are t be dealt with prmptly but investigatins are t be apprpriate. But a thrugh investigatin might require delaying a hearing. 6.3 Als, the unqualified nature f the statements creates cnflict with subsequent text. Fr example, an emplyee is stated t have the right t be accmpanied. Is this intended t mean right in the sense f as prescribed by law - in which event this is cvered elsewhere. Or, as is likely t be the mre natural interpretatin adpted by lay readers, the Cde is creating a right (i.e. 25% adjustment t Tribunal awards) - which we cnsider it shuld nt be ding - therwise ACAS is, in effect, legislating beynd Parliament. 6.4 With regard t the secnd element, speaking f emplyers being cnsistent and treating like cases alike is an ver-simplificatin. There are very few disciplinary cases that are alike. Even in a case where a number f disciplinary hearings arise ut f the same set f facts, the circumstances f each emplyee is likely t be materially different. Fr example, the Cde might say: Emplyers shuld act cnsistently in apprach by taking int accunt hw similar issues have been treated. 6.5 Regarding the furth bullet, what des invlvement mean? This needs clarificatin. 6.6 There is a specific prblem with the sixth element. If suspensin with pay in rder t cnduct an investigatin is within the Cde (and there is nthing t say it is nt) then this suggests an emplyee must have an pprtunity t put their case befre being suspended. But this is back t frnt, since the investigatin has t be cnducted in rder t determine whether there is a case fr the emplyee t answer. 5

6 7 It is gd practice t keep written recrds during disciplinary and grievance cases. A written recrd shuld be kept f the utcme. 7.1 It is very unclear what t keep written recrds means in the first sentence. Is this requiring keeping what has been prduced r suggesting written recrds shuld be prduced such as a transcript f the hearing - which wuld seem an unnecessary burden? Des it nly refer t the written recrds prduced fr a hearing? Des it apply t investigatins? There may be many reasns fr nt generating/keeping written recrds, such as cmpliance with laws such as data prtectin. The rules f the Data Prtectin Act shuld be mentined in the text. 7.2 The text als begs the questin f what keep means - wh keeps, where d they keep, fr hw lng d they keep? 7.3 The verarching cncern we have with this paragraph is that it creates a new burden fr emplyers because we dubt emplyers currently cnvert t written frm all infrmatin prduced, nr d they keep everything that is generated. DISCIPLINE Keys t handling disciplinary prblems in the wrkplace Establish the facts f each case 8 It is imprtant t investigate ptential disciplinary matters prmptly t establish the facts f the case befre memries f events fade. 8.1 The use f investigate might suggest an investigatin is required fr every hearing. This is nt necessarily s. In sme cases an emplyer may need t d n mre than cllect the relevant evidence. 9 If there is a purely investigatry meeting this will nt by itself result in any disciplinary actin. Hwever, it shuld be made clear t the emplyee that the investigatin may lead t disciplinary charges being raised. The statutry right f accmpaniment will nt apply, but it is gd practice t allw the emplyee t be accmpanied. 9.1 We think it nt apprpriate in all cases t say that an investigatin may lead t disciplinary charges. After all, n sme ccasins the investigatin may be carried ut in rder t clear an individual wh has been accused by anther emplyee r a third party. It wuld appear t place such an individual under unnecessary stress t suggest there may be disciplinary charges. 9.2 Fr similar reasns we cnsider that being accmpanied is nt always gd practice. Furthermre, as als previusly nted, ACAS by this statement is legislating beynd Parliament. Parliament has deliberately nt extended the right t be accmpanied (Sectin 10 Emplyment Relatins Act 1999) int investigatins yet an emplyer wh des nt cmply with the Cde by nt permitting the emplyee t be accmpanied risks a 25% adjustment t any award albeit he did nt infringe Sectin In thse cases where a perid f suspensin with pay is cnsidered necessary, this perid shuld be kept as brief as pssible On sme ccasins the party may agree a lng perid f suspensin. The text shuld recgnise this is acceptable. 12 This ntificatin shuld cntain sufficient infrmatin t let the emplyee knw what the alleged prblem is and its pssible cnsequences. 6

7 12.1 The final part f the sentence suggests that the emplyer must detail all pssible cnsequences. This wuld seem t be ver-prescriptive. A reference t utlining the principal cnsequences wuld seem mre apprpriate. Fr example the Cde might say: let the emplyee knw what the alleged prblem is and the pssible range f disciplinary actin that may be taken Further, ne assumes this is intended t mean disciplinary cnsequences and nt anything else. Hld a meeting with the emplyee t discuss the prblem 13 Befre hlding a disciplinary meeting ensure that the emplyee has been ntified f the nature f the prblem and the basis f the allegatins against them. The meeting shuld then be held prmptly whilst allwing the emplyee reasnable time t prepare their case As was recgnised by the Statutry Prcedures, there may be ccasins where the emplyer is nt bliged t hld a meeting (e.g. vilence by the emplyee). This shuld be recgnised in the draft Cde Des a ntificatin fr the purpses f paragraph 12 satisfy the ntificatin required by paragraph 13? Perhaps the tw paragraphs shuld be cmbined. 14 At the meeting allw the emplyee t set ut their case and answer any allegatins that have been made Here and elsewhere it is striking that the Cde places n bligatins upn the emplyee, such as t attend and behave reasnably (cmpare the Statutry Prcedures). There is a lack f even-handedness. Decide n apprpriate actin 18 Fllwing the meeting decide whether r nt disciplinary r any ther actin is justified and infrm the emplyee accrdingly While in many cases an emplyer will adjurn a hearing befre making a decisin, this is nt always s. A decisin might be rendered at the hearing. It wuld be perverse fr an emplyer t face a 25% adjustment award because f this. The Cde shuld recgnise that decisins are smetimes made at the disciplinary hearing It wuld be helpful t state that the emplyee shuld be infrmed in writing. As writing is specified elsewhere (e.g. paragraph 19) if this is nt stated then the reader wuld be entitled t assume writing is nt required. Als, cmpare this with paragraph 28, which des specify in writing. 19 Where the emplyee is fund guilty f miscnduct r t be perfrming prly they shuld be given a written warning. A further act f miscnduct r failure t imprve perfrmance within a set perid wuld nrmally result in a final written warning See the cmment at paragraph 22 regarding exceptins t the secnd sentence. 20 If an emplyee s first miscnduct r unsatisfactry perfrmance is sufficiently serius, it may be apprpriate t mve directly t a final written warning. In small rganisatins this might ccur where the emplyee s actins have had, r are liable t have, a serius r harmful impact n the rganisatin What is the definitin f small? See 4.1 abve. 7

8 20.2 It is nt bvius why in sme cases large rganisatins shuld nt issue a final written warning where there is serius harm t the rganisatin. 21 A first r final written warning shuld set ut the nature f the miscnduct r pr perfrmance, the change in behaviur r imprvement in perfrmance required (with timescale). The emplyee shuld be tld f a specified perid after which the warning will be disregarded With regard t the final sentence, it shuld be recgnised that there are ccasins where a warning may last fr an indeterminate perid Als, warnings may be relevant in ther cntexts (such as redundancy selectin) and therefre nt disregarded. 22 The emplyee shuld be infrmed that a further act f miscnduct, r failure t imprve perfrmance, within the set perid fllwing a final warning, may result in dismissal r sme ther penalty such as demtin r lss f senirity The text shuld reflect that sme acts f miscnduct need nt be time limited (see paragraph 95 f the draft guidance). 23 Sme acts, termed grss miscnduct, are s serius that they may call fr summary dismissal fr a first ffence. But a fair disciplinary prcess, including a right f appeal, shuld always be fllwed, befre deciding whether grss miscnduct has ccurred The secnd sentence cntrasts with the mdified prcedure under the Statutry Prcedures. There, Parliament recgnised that a first meeting was nt always necessary. This shuld be reflected in the draft Cde Regarding the secnd sentence, hw can there be an appeal befre deciding whether grss miscnduct has ccurred? There has t be an appeal frm a decisin! 24 Disciplinary rules shuld give examples f acts which the emplyer regards as acts f grss miscnduct. These may vary accrding t the nature f the rganisatin and what it des, but might include things such as theft r fraud, physical vilence r serius insubrdinatin Other examples wuld be helpful. They culd be taken frm the nn-statutry guidance r paragraph 24 transferred t the guidance See als 3.1 abve regarding disciplinary rules being mandatry - which this paragraph suggests is the case. Prvide emplyees with an pprtunity t appeal 25 Appeals shuld be heard prmptly and ideally at an agreed time and place An nus shuld be placed n emplyees t set ut their grunds f appeal in writing. This reflects the gd practice f the Statutry Prcedures While we agree appeals shuld be heard prmptly (expressed as withut undue delay - see 6.1 abve), there are numerus reasns why an appeal might be deferred. Fr example, if the emplyee has triggered a grievance prcedure. Shuld an emplyer ignre, in effect, the grievance prcedure by carrying n with the appeal, r shuld the grievance prcedure and appeal be run in parallel, r shuld the appeal be adjurned until the grievance prcedure has been fllwed thrugh? Any f these three ptins might be apprpriate in the circumstances. Thus, it wuld nt seem right t dictate ne apprach. Again, the draft Cde shuld demnstrate mre flexibility. 8

9 25.3 The Cde shuld recgnise that an appeal may be a review r a re-hearing. 26 Wherever pssible the appeal shuld be dealt with by a manager wh is mre senir than the manager wh cnducted the first hearing See the cmment in paragraph 41.1 belw. 28 Emplyees shuld be infrmed in writing f the results f the appeal hearing as sn as pssible This is an example f the Cde using the expressin as sn as pssible whereas elsewhere it says prmptly. Is there a difference? What is the difference? Why nt say withut undue delay here and thrughut? See als 38.1 belw. 30 If an emplyee is charged with, r cnvicted f a criminal ffence this is nt in itself reasn fr disciplinary actin. Cnsideratin needs t be given t the effect f the charge r cnvictin n the emplyee s ability t d their jb The first reference is bscure. While ne might say a five-year prisn term des nt in itself call fr disciplinary actin, n emplyer culd be expected t ignre the imprisnment. The sentence shuld recgnise that there are circumstances where the nature f a charge r cnvictin inevitably calls fr disciplinary actin 30.2 With regard t the secnd sentence, we d nt think that ability t d their jb is the sle factr that determines whether disciplinary actin shuld be taken. Fr example, there are situatins where the reputatin f the emplyer culd be adversely affected by nt disciplining Further, emplyees might be cncerned that the secnd sentence suggests that any custdial sentence wuld justify disciplinary actin. We d nt think this is necessarily the case. GRIEVANCE Keys t handling grievances in the wrkplace Let the emplyer knw the nature f the grievance 31 This is best dne in writing and t the emplyee s line manager Is it right that all grievances shuld be subject t a frmal prcedure? Cmpare the Statutry Prcedures where nly certain frmal grievances are subject t that prcedure. An emplyee may want t initially discuss an issue infrmally, and this shuld be recgnised in the Cde. Hld a meeting with the emplyee t discuss the grievance 33 Arrange fr a frmal meeting t be held prmptly after a grievance is received It is nt bvius that all grievances require a frmal meeting Why is there n bligatin upn an emplyee t raise a grievance prmptly (r withut undue delay )? 34 Allw the emplyee t explain their grievance and hw they think it shuld be reslved See the cmment at 14.1 abve. 9

10 Decide n apprpriate actin 38 Fllwing the meeting decide n what actin, if any, t take. Decisins shuld be cmmunicated t the emplyee withut undue delay and, where apprpriate, shuld set ut what actin the emplyer intends t take t reslve the grievance What is the difference between prmptly and undue delay here? There shuld be cnsistency in the text. See 6.1 abve. Allw the emplyee t take the grievance further if nt reslved 39 If an emplyee feels that their grievance has nt been satisfactrily dealt with they shuld be allwed t take the matter further n appeal Hw is the emplyee t appeal? Shuld it be inviting? What time perid shuld apply? 40 Appeals shuld be heard prmptly and at an agreed time and place which shuld be ntified t the emplyee See the cmment at 38.1 abve. 41 Where pssible the appeal shuld be dealt with by a manager wh is mre senir than the manager wh dealt with the first hearing The text shuld explicitly recgnise that - nt pssible - are cases where the emplyer has few managers. Special cases 43. It is gd practice t cnsider dealing separately with issues invlving bullying, harassment r whistleblwing We were unclear initially as t what dealing separately meant. The Guidance clarifies this and states that emplyers may want t have separate prcedures. This shuld be made clear in the drafting f the Cde There are ther special cases that the Cde shuld address: the relatinship between an emplyer s prcedure (pssibly in a cllective agreement) and the Cde s prcedure; cllective grievances; aggregating a series f grievances; pst terminatin f emplyment grievances - cmpare the Statutry Prcedures which address this; and interactin between grievance and disciplinary prcedures. 10